Monday, January 16, 2006

WaPo's Editorial Verdict On Alito

Supreme Court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the determinative factor. To go down that road is to believe that there exists a Democratic law and a Republican law -- which is repugnant to the ideal of the rule of law. However one reasonably defines the "mainstream" of contemporary jurisprudence, Judge Alito's work lies within it. While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.

The Democrats are strong when arguing the real issues, and weak when they deliberately make up arguments. As Mark Steyn wrote:

Even smear tactics require a certain plausibility. When you damn someone as a big scary mega-troubling racist misogynist homophobe and he seems to any rational observer perfectly non-scary and non-troubling, eventually you make yourself ridiculous. The boy who cried "Wolf!" at least took the precaution of doing so when there was no alleged predator in view. If he'd stood there crying "Wolf!" while pointing at a hamster, he'd have been led away for counseling. That's the stage the Senate Democrats are at.

And worse yet, all of this comes in the wake of a string of troubling Supreme Court decisions which are antithetical to the average person's conception of the Constitution. In Kelo (text, Wiki), a majority of the Supreme Court decided that a public use was whatever the legislature decided it was, including taking one person's home to give to a private developer who intended to use the seized property to build another home and sell it to the highest bidder. How this is not the taking of "the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation" is manifestly unclear. To put it bluntly, this was exactly the argument used to usurp the land rights of native Americans. Worse yet, in the decision the Supreme Court stated that it was deferring to the judgment of the legislature as to public use, yet Nancy Pelosi announced that for the legislature to expand protections against this sort of taking would violate the separation of powers in the Constitution.

In Gonzales v Raich, the majority decided that California's voters and California's legislators could not pass a law allowing individuals to grow marijuana for their own medical use as prescribed by their doctors. The two decisions fundamentally contradict each other in every way but in their deference to Congress, which has been shown yet again in a string of decisions on federal restrictions about giving to campaigns, in which the majority of the Supreme Court has gutted the First Amendment's explicit mandate:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The average person might reasonably view the latest penumbras and emanations of the Constitutions as veering perilously close to destroying the the Constitution itself. Democrats are attempting to argue that Alito is too deferential to presidential power, but that argument ignores that the Bill of Rights was designed to restrict the power of the federal government, which includes the power of Congress.

Now, if Democrats wish to argue for common rights and the protection of the disadvantaged members of society, they need to take up the plight of those who are being robbed of their property by monied interests. And if they want to take up the cause of inappropriate use of governmental powers, they had better address the low esteem in which Congress is held by the majority of American citizens. And if either party wants to prate about the perils of allowing vested interests to manipulate elections, first the party leadership should change the rules to allow third parties into the presidential debates!

But if you read the transcripts of the Roberts and Alito hearings carefully, you find that the senators were extremely interested in the candidates' positions upon the scope of Congressional power while merely tossing out a few rhetorical tropes regarding the candidates' positions upon the rights of the citizens.

In short, hypocrisy may catch up with Congress at the ballot box. It is very possible that the libertarian interests in both the Democratic and Republican parties may ally, because the common citizen is not taking all this lightly. This is not to say that the Republicans are a magic answer, but if the Supreme Court of Alito and Roberts rebuffs some of the latest trend to consolidate power in the hands of the federal legislature, what do you think will happen to presidential politics in the US? It is extremely difficult for the average citizen to move Congress, but by voting for a president with a particular ideology the citizenry can strongly and decisively affect the direction of public policy.